Vertigan v. Halter

• Citation: 260 F.3d 1044
• Decision Date: 10 August 2001
• Docket Number: PLAINTIFF-APPELLANT,DEFENDANT-APPELLEE,No. 99-35787,99-35787
• Parties: (9th Cir. 2001) SHIRLEY J. VERTIGAN,, v. WILLIAM A. HALTER, ACTING COMMISSIONER OF SOCIAL SECURITY,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1044

260 F.3d 1044 (9th Cir. 2001)

SHIRLEY J. VERTIGAN, PLAINTIFF-APPELLANT, v. WILLIAM A. HALTER, ACTING COMMISSIONER OF SOCIAL SECURITY, DEFENDANT-APPELLEE.

No. 99-35787

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted May 8, 2001

Filed August 10, 2001

[Copyrighted Material Omitted] Counsel Martin Taller, Law Offices of Martin Taller, Anaheim, California, for the plaintiff-appellant.

Victoria Blais and Stephanie Mortz, Office of General Counsel, Social Security Administration, Seattle, Washington, for the defendant-appellee.

Appeal from the United States District Court for the Western District of Washington; Barbara J. Rothstein, District Judge, Presiding. D.C. No. CB-98-01588-BJR.

Before: Donald P. Lay,^* Stephen S. Trott and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Lay

Shirley Vertigan appeals the district court's affirmance of a final decision of the Commissioner of Social Security ("Commissioner") denying her disability insurance benefits under Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 401-33. On appeal, Ms. Vertigan contends that there was no substantial evidence on the record as a whole to support the Administrative Law Judge's ("ALJ") conclusion that she had the residual functional capacity to perform her past relevant work. Ms Vertigan claims that the ALJ erred by dismissing her subjective testimony of pain, by concluding that she could perform her past relevant work, and by failing to call a medical expert to determine the onset date of her disability. We reverse and remand for an award of benefits.

I.

The admitted complexity of this appeal focuses upon whether Ms. Vertigan was disabled and unable to perform substantial gainful activity during her period of insurability. It is undisputed that the date Ms. Vertigan was last insured under the Act was December 31, 1988. It is also conceded that she met the disability insured status on June 30, 1983, the date that she stated she was unable to work, and continued to meet it through December 31, 1988. Ms. Vertigan brought the present case in 1996,¹ at which time the ALJ concluded that Ms. Vertigan suffered from severe chronic back pain syndrome. However, the ALJ concluded that Ms. Vertigan did not have an impairment or combination of impairments listed in, or medically equivalent to one listed in Appendix 1, Subpart P, Regulation No. 4. The ALJ further concluded that Ms. Vertigan was not disabled because she could perform her past relevant work as a cashier and as a receptionist. The district court reviewed the ALJ's decision and concluded that there was substantial evidence to support the ALJ's decision, with the exception that Ms. Vertigan's past relevant work did not include work as a receptionist.

Ms. Vertigan was born on December 28, 1934, and was fifty-four years of age on December 31, 1988, the date that she was last insured for disability benefits. Ms. Vertigan had her initial back surgery in 1977. Prior to her surgery in 1977, she worked as a pharmacy clerk, then as a waitress for eight months during 1978-1979, subsequently as a pharmacy clerk for Leisure World until the middle of 1983, and finally as a receptionist for brief periods during 1986. Her work as a pharmacy clerk encompassed, at brief intervals, duties as a cashier. She has not worked since that time.

Since her original surgery in 1977, she has had five other surgeries, but only one occurred during her period of insurability. On October 17, 1985, she underwent an L5 laminectomy, L5-S1 foraminotomy and left L5-S1 fusion. ² It is conceded by both sides that the four surgeries subsequent to December 1988 were not relevant to the determination of her condition as of December 1988. We concur with that assessment with one caveat, that her subsequent surgery corroborates the continuing deterioration of her back since the time of her second surgery on October 17, 1985.

The record shows that Ms. Vertigan saw numerous orthopedic, neurological and psychiatric physicians since her second surgery in October of 1985. Space does not permit, nor does it provide much guidance to repeat all of the surgical notes on medical examinations involved during the period from 1983 through 1998. Suffice it to say that all of the medical reports focused upon Ms. Vertigan's back condition, with differing recommendations as to treatment. However, we highlight certain notes which we find persuasive and corroborative of Ms. Vertigan's claim of disability and the lack of her ability to perform substantial gainful activity.

One of those exams was done in August 1985 when Ms. Vertigan was seen by Dr. Arthur Bunzel on behalf of a workers' compensation carrier. Dr. Bunzel determined as early as August 16, 1985, that based upon his findings "[t]he subjective factors of permanent disability currently do not permit this patient to work as a pharmacy clerk." Earlier in that same year, on March 19, 1985, Dr. Arthur Liggett indicated that Ms. Vertigan was precluded from heavy lifting, repeated bending and stooping, and prolonged sitting and standing.

In 1985, Dr. Harry Marinow, another workers' compensation physician, examined Ms. Vertigan, and based on a CT scan, found that Ms. Vertigan was suffering from spinal stenosis. Following conflicting psychiatric reports, Ms. Vertigan was admitted to the hospital on October 17, 1985, where she underwent surgery by Dr. James Roe for an L5 laminectomy, left L5-SI foraminotomy, and a left L5-SI fusion. She continued to see Dr. Roe, who was able to verify her ongoing complaints of low back pain with various neurological examinations. Epidural blocks were performed on August 7, 1987, and September 9, 1987, to no avail. As early as December 16, 1987, Dr. Fernando A. Ravessoud, who had recommended the epidural blocks, indicated that Ms. Vertigan may have to have another back surgery which would involve an L4-5 fusion.

On June 10, 1988, the workers' compensation physician, Dr. Marinow, made the following observations:

Patient is able to lift no more than five pounds without increased pain of the low back. Prolonged walking, standing, and sitting cause increased pain of the low back. Patient is able to remain walking or standing for no longer than five minutes. Patient is not able to remain seated for longer than 10 minutes.

His report continued that Ms. Vertigan complained of"constant slight low back pain with constant slight radiation of pain to the lower extremities down to the heel, greater on the left. This pain is increased to a moderate degree with bending, stooping, squatting, climbing ladders or stairs, very heavy lifting, prolonged walking, standing or sitting, twisting, turning . . . ."

Eleven days later, on June 21, 1988, Dr. Steven Graboff, a state agency consultative physician, stated that Ms. Vertigan had constant, moderate low back pain and loss of motion in the spine. He stated in his report: Ms. Vertigan"has disabilities that revolve around the low back . . . . She has no difficulty with prolonged sitting, but does have difficulty with prolonged standing, walking, climbing and repeated bending and stooping." Claimant argues in her brief that she never made any statements to Dr. Graboff stating that she could sit for prolonged periods. She cites to her testimony where she repeats that for so many years she has not been able to sit and that her sitting tolerance was only ten minutes before she felt she would have to get up and stand.³

Ms. Vertigan's back problems continued to deteriorate after the date she was last insured. She received additional treatment and surgeries, which we will not explain in detail, but as we mentioned earlier these treatments confirm the seriousness of her condition.

II.

We review the district court's order affirming the Commissioner's denial of benefits de novo. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). We uphold the Commissioner's decision denying benefits if the Commissioner applied the proper legal standard and there is substantial evidence in the record as a whole to support the decision. Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). Our review of the record convinces us that there was not substantial evidence on the overall record to support the ALJ's decision denying Ms. Vertigan benefits.

III.

A. Credibility Findings by the ALJ

Ms. Vertigan first argues that the ALJ failed to adequately credit her complaints of pain as reflected in the documentary records, her testimony, and her husband's testimony. Although it is difficult to perceive the ALJ's reasoning for concluding that Ms. Vertigan's testimony of pain lacked credibility, it appears that he felt Ms. Vertigan could carry on sufficient daily exertional activities to do light work.

It is clear that it is the responsibility of the ALJ, not the claimant's physician, to determine residual functional capacity. 20 C.F.R. §§ 404.1545. However, absent affirmative evidence of malingering, an ALJ cannot reject a claimant's testimony without giving clear and convincing reasons. Smolen, 80 F.3d at 1283-84. "The ALJ must specifically identify what testimony is credible and what testimony undermines the claimant's complaints." Morgan v. Commissioner of the Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). The fact that a claimant's testimony is not fully corroborated by the objective medical findings, in and of itself, is not a clear and convincing reason for rejecting it. See Smolen, 80 F.3d at 1285.

In evaluating the credibility of claimant's testimony, the ALJ must consider the factors set out in Social Security Ruling ("SSR") 95-5p. The factors in SSR 95-5p include daily activities and the adjudicator's personal observations of the claimant. See Soc. Sec. Rul. 95-5p, 1995 WL 670415, at *1. With respect to daily...